Inspiration from Martha Nussbaum

I'm writing about the tension between the public interest in controlling the transmission of HIV and other sexually transmitted infections and the need to respect individual autonomy particularly in the area of sexuality. I'm drawing some from the work of philosopher Martha Nussbaum and also from the area of women's health and choice issues. Here are some first thoughts.

In Sex and Social Justice Martha Nussbaum identifies ten capabilities that are central to freedom and human dignity. The first two can be summarized as:

1. Life. Being able to live to the end of a human life of normal length . . . ; not dying prematurely . . .

2. Bodily health and integrity. Being able to have good health, including reproductive health; (to be) adequately nourished . . . to have adequate shelter . . .

Under current circumstances these capabilities are unfulfilled for gay men. Gay men are under continual threat of violence, and live with both the consequences of assaults and the constant vigilance necessary to guard against it. HIV endangers the lives and health of many more; currently public health reseachers estimate that as many as half of the gay men currently sexually active in the United States will become infected during their lifetimes.

In order to avoid the acquisition and transmission of HIV gay men are to be asked to adapt their sexual behaviors: to forgo sex without condoms with new partners, to divulge their serostatus to partners with whom they have unprotected anal intercourse, and to be mindful of how their partnerships can affect the network structures that facilitate or inhibit STI transmission. This necessity suggests tension between the first two of Nussbaum’s capabilities and her third.

3. Bodily integrity. Being able to move freely from place to place; being able to be secure against violent assault, including sexual assault . . . ; having opportunities for sexual satisfaction and for choice in matters of reproduction

At the surface a dangerous and prevalent sexually transmitted infection in a community pits the necessity for individual self determination for sexual actors, particularly their freedom to have sex with whom they want and how they want, against their need for a healthy environment that will not expose them to virulent pathogens. One's sexual liberty may pose a threat to his well being and that of his direct sexual partners, but also to the community in which the individual sexually interacts, exemplified by a 50% cumulative prevalence of HIV infection. (It is widely recognized that in countries with widespread heterosexual HIV epidemics that the danger of infection is a violation of the human rights of women.) It would be easy to conclude that in the right to self-determination (in this case sexual license) diminishes the legitimate right to health. Another lens is necessary to understand this apparent dissonance.

Among developed countries, the United States is fiercely individualistic. We have the freedom to prosper or to perish; either will be attributed largely to our personal merits, often disregarding the circumstances that have helped or hindered us. We’re also a nation that places importance on privacy, and progressive civil libertarians have succeeded in rightly extricating government from our private sexual and reproductive affairs, with Supreme Court decisions overturning laws against abortion in 1973 and sodomy in 2003.

It may at first appear that in the realm of human sexuality, every advance toward social justice has been accomplished through the promotion of individualism, a perspective to which we in the United States are particularly receptive, where community-mindedness and self-determination are commonly perceived to be at odds. Historically few calls to adapt sexual practices have been in the interests of those addressed, serving instead the need for control and conformity by religious and civic leaders, and those with easily offended sensibilities, all under the rubric of protecting the public good.

To get from Nussbaum’s third need, the need for sexual freedom and autonomy, to her first two needs, the right to live a full and healthy life, requires the addition of reasoned thinking. The element of harm to others and sometimes oneself must be considered. Our right to sexual freedom is tempered by the right of others to remain free from infections we may give them. Our right to remain unexposed to infection in turn is tempered by the rights of our sexual partners to have had other partners before us. Both of these can be used to reduce the harm to ourselves and our communities. Using condoms or limiting our partnerships to those in which there is evidence that infection cannot be transmitted fulfills both of those goals.

Societies that respect human rights commit to both individual autonomy and communitarianism. Respect for both reduces the capacity to value at expense of the other. Dialog about the importance of either must come in a framework of a strong commitment to rights overall. At the individual or policy level we can be conscious how personal choices affect the public good and how the promotion of the public welfare affects the autonomy if individuals. This principle is fundamental in the area of property rights; an individual is free to do with his land up to the point where it adversely affects the public good and the public good is protected up to the point where it would infringe on individuals' reasonable rights to do with their property as they will. Conflicts are inevitable but by upholding the importance of personal volition and the public good we ensure that neither is imperiled.